S v Kunene and Another (RP28/2015, 05/15) [2015] ZANWHC 30 (20 July 2015)

S v Kunene and Another (RP28/2015, 05/15) [2015] ZANWHC 30 (20 July 2015)

The sentencing court erred by fixing a non-parole period without affording the accused and the prosecutor an opportunity to address the court on this issue. This failure constitutes a misdirection and infringes the accused's right to a fair trial. Furthermore, there were no exceptional circumstances present to justify the fixing of a non-parole period under section 276B of the Criminal Procedure Act. It is not in the interests of justice to remit the matter for further hearing, as the facts do not warrant such an order. The non-parole period must therefore be set aside and the sentence substituted with three years' imprisonment for each accused.

Citation
[2015] ZANWHC 30
Parties
Applicant: The State; Respondent: Goitsemodimo Johny Kunene; Respondent: Oduetse Israel Noganya
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
20 July 2015
Case Number
RP28/2015
Procedural Posture
Criminal Review / Review Judgment
Outcome
The non-parole period imposed by the trial court is set aside and substituted with a sentence of three years' imprisonment for each accused.
Judges
Hendricks
Legal Topics
Stock Theft, Sentencing, Non Parole Period, Fair Trial Rights
Criminal Law Stock Theft Sentencing Non Parole Period Fair Trial Rights

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Parties

The State

Applicant

Goitsemodimo Johny Kunene

Respondent

Oduetse Israel Noganya

Respondent

Procedural Posture

Criminal Review / Review Judgment

Legal Issues

  1. 1 Whether the sentencing court was justified in fixing a non-parole period under section 276B of the Criminal Procedure Act.
  2. 2 Whether the accused and the prosecutor were afforded the opportunity to address the court regarding the non-parole period.
  3. 3 Whether the failure to afford such opportunity constituted an infringement of the accused's fair trial rights.

Ratio Decidendi

The sentencing court erred by fixing a non-parole period without affording the accused and the prosecutor an opportunity to address the court on this issue. This failure constitutes a misdirection and infringes the accused's right to a fair trial. Furthermore, there were no exceptional circumstances present to justify the fixing of a non-parole period under section 276B of the Criminal Procedure Act. It is not in the interests of justice to remit the matter for further hearing, as the facts do not warrant such an order. The non-parole period must therefore be set aside and the sentence substituted with three years' imprisonment for each accused.

Court Disposition

The non-parole period imposed by the trial court is set aside and substituted with a sentence of three years' imprisonment for each accused.

Orders

  • The sentence imposed by the court a quo is set aside and substituted with three years' imprisonment for each accused.